The death of Supreme Court Justice Antonin Scalia has provoked a number of reactions. Within seconds of the news breaking, Twitter was predictably consumed in disagreement over when and how his successor should be nominated. The political consequences, especially in an election year, are obvious. There are many thoughtful articles attempting to read the tea leaves and prophesy a successor. This is not one of them.

Particularly for those of us interested in American religion, I think Scalia is a valuable figure to consider, study, and teach (as I've argued here). (It seems odd that this would need qualification, but I’ll pre-emptively point out that my interest in his work is different from agreeing with him or his ideas.) I looked forward to reading his opinions each term, and anticipating how I could work them into the classroom. Teaching about American religion and law means communicating to students the importance of thinking about legal categories and their real-world implications for our families, friends, and neighbors (“Who gets to get married?”). This requires students to think about the politics of the category “religion,” processes of social formation, and identity contestation. For this, I assign Bruce Lincoln and Jonathan Z. Smith. I also assign Antonin Scalia:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it...when we wish to uphold a practice it forbids, we ignore it entirely. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Whatever my students’ personal opinions about the Lemon Test or the place of religion in public life, I think Scalia’s colorful critique (in Lamb's Chapel v. Center Moriches Union Free School District [1993], above) provides one useful perspective on the curious state of Establishment Clause jurisprudence today. But it also reminds the reader of the many uses of history, and the divergent uses toward which the "same history" can be put: applying "history" as a one-size-fits-all solution is more complicated than we might think. Scalia ran into this problem, too, such as when he tried to answer the hypothetical question of how he would have voted on school desegregation. He referred to this objection to his historical approach as "waving the bloody shirt of Brown."

Scalia’s opinions demonstrate—perhaps in ways he did not intend—the difficulties of claiming a particular past as universal and objective. Consider his thoughts in McCreary County v. ACLU of Kentucky (2005):

If religion in the public forum had to be entirely non-denominational, there could be no religion in the public forum at all. One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.

Scalia famously described himself as an originalist, by which he meant that the written constitution has an original meaning by virtue of it being a historic document—that is, a document written by particular people, at a particular time, for particular reasons. He was convinced that those things are accessible to us in the present:

I deny the premise that law has nothing to do with historical inquiry. Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.

And he had little patience for critics who disagreed, especially if they thought of the Constitution as a living document with a meaning that evolved over time. Scalian history, by contrast, was one thing—one story—that was possible to know. “History is a rock-solid science compared to moral philosophy,” he once remarked. This attitude differs from how I, and I suspect many who read this blog, understand history. But differences of opinion do not require us to dismiss each other, as Justice Ginsburg noted about her "best buddy."

I will miss Scalia. To me, he was a living reminder that the work of the historian is always partial and always partisan. Despite our best efforts, the business of telling stories about the past has real, political consequences that are often difficult to track or anticipate. I was, and am, fascinated by Scalia’s certainty about the monolithic nature of history and his simultaneous awareness of the multiple narratives that would surely arise after his death to contest his memory. (The Onion was particularly sharp on this.)

Constitutional originalism is a political strategy in which historical narrative is the currency of choice. Scalia revealed and relished in this strategy. His opinions, given to journalists or via the bench, indicted the craft of historical inquiry and its various guilds, including especially this one. He brandished his interpretation of history to ensure a particular end. His thoughts on the Lemon Test serve as a reminder about the selective uses of history and the ease with which we all use them.

1 comments:

"...in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law.

Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think.

And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . .